Madras High Court
Palaniammal vs Selvarasu on 2 March, 2022
S.A.(MD)No.578 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.578 of 2010
and
M.P.(MD)No.2 of 2010
Palaniammal ... Appellant / Appellant / Plaintiff
-Vs-
Selvarasu ... Respondent / Respondent / Defendant
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code,
against the decree and judgment of A.S.No.9 of 2008, dated 22.01.2009 on the
file of the Principal Sub Judge, Tenkasi, against the decree and judgment of
O.S.No.163 of 2005, dated 30.07.2007 on the file of the Additional District
Munsif Court, Tenkasi.
For Appellant : Mr.S.Muthukrishnan
For Respondent : Mr.D.Venkatesh
JUDGMENT
The unsuccessful plaintiff in O.S.No.163 of 2005 on the file of the
Additional District Munsif Court, Tenkasi, is the appellant in this second
appeal.
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S.A.(MD)No.578 of 2010
2. The appellant filed the said suit seeking the relief of declaration that
the suit second schedule property belongs to her absolutely and for removing
the construction put up by the respondent in a portion of the suit second
schedule property which had been described as the suit third schedule. The
respondent herein filed written statement controverting the plaint averments.
The respondent also raised a counter claim seeking declaration that the first
schedule of the written statement is a common pathway and that the
construction put up by the appellant in the said common pathway has to be
removed. The appellant's construction has been shown as the second schedule
to the written statement. Based on the rival pleadings, the trial court framed the
necessary issues. The plaintiff / appellant examined herself as P.W.1. Ex.A1 to
Ex.A3 were marked. The respondent herein examined himself as D.W.1.
Ex.B1 to Ex.B3 were marked. An advocate commissioner was appointed and
his report and plan were marked as court exhibits 1 and 2. The surveyor's
sketch was marked as court exhibit 3. After a consideration of the evidence on
record, while the suit was dismissed, the counter claim was allowed. The
appellant was directed to demolish the construction put up by her. Aggrieved
by the same, the plaintiff filed A.S.No.9 of 2008 before the Principal Sub Court,
Tenkasi. By the impugned judgment and decree dated 22.01.2009, the decision
of the trial court was confirmed and the appeal was dismissed. The court
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S.A.(MD)No.578 of 2010
exhibit No.3 was directed to be a part of the decree. Challenging the same, this
second appeal came to be filed. The second appeal was admitted on the
following substantial questions of law:-
“1.Whether the courts below have failed to consider the fact that no
common passage was reserved by the vendor under Ex.A1 in between the property
sold to the appellant / the plaintiff and the property retained by him, leading to a
perverse finding that the common passage that branches from the East-West
Kutralam-Tenkasi main road extends upto the southern edge of the plaintiff's
property purchased under Ex.A1?
2. Whether the recitals found in the sale deed under which the respondent /
the defendant purchased the property lying on the west of the plaintiff's property
showing a common passage in between the two shall be binding on the appellant/the
plaintiff?”
3. Even before commencing the arguments, the learned counsel
appearing for the appellant filed a memo signed by the appellant that she would
be content, if the constructions put up by her are not demolished. She had also
agreed that the rest of the portion of the plaint second schedule, other than the
staircase already put up by her, can be used as common pathway and that she
also will permit the respondent herein to do the repair works as and when
required on the southern portion of his property. This undertaking given by the
appellant through her counsel is placed on record. In other words,
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S.A.(MD)No.578 of 2010
notwithstanding the outcome of the second appeal, the appellant will adhere to
this undertaking.
4. Coming to the merits of the matter, it is seen that the appellant
Palaniammal had purchased her property earlier in point of time. One Mookka
Mooppanar sold the property covered under Ex.A1 dated 06.11.1985 in favour
of the plaintiff. The plaintiff had also been granted Ex.A2 patta. The four
boundary description set out in Ex.A1 is as follows:-
“njd;fhrp hpb njd;fhrp [hapz;l
; ; 2eph; rg;hp rufk; Nkyfuk;
fpukk; gQ;rhaj;J vy;iff;Fs;gl;l Nkyfuk; fpuhkj;jpy; ej;jk;
Gwk;Nghf;F mad;rh;Nt 142 ePhpy; njg;gf;Fsk; njUtpy; nrz;L 1
xd;Wf;F vy;if jq;fs; gh;j;jh k.RliyKj;J iftrkpUf;fpw
kidf;Fk; tlf;F vd;iftrkpUf;fpw tPl;Lkidf;Fk; fpof;F gl;ld;
kidf;Fk; njd;tly; nghJghijf;Fk; njw;F Rliykidf;Fk;.”
5. The respondent herein purchased the property on 12.10.2000 from the
legal heirs of the very same Mookka Mooppanar. The four boundary description
set out in Ex.B1 is as follows:-
“njd;fhrp hpb njd;fhrp 2 eph; [hapz;l; rg;b rufk;
njd;fhrp gQ;rhaj;J a+dpad; vy;ifFs;gl;l Nkyfuk; fpuhkk;
ej;jk; rh;Nt 142/7 ephpy; rJu mb 678.65625 f;F Nkyfuk;
Ng&uhl;rp Kd; thh;L 7 ,g;NghJ thh;L 6y; Nkyfuk; fpuhkk;
Chpy; njg;gf;Fsj;J njUtpy; fpoNky; tljiy mb 22.75 \
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S.A.(MD)No.578 of 2010
njd;jiy mb 20 njd;tly; Nky;jiy mb 33.5 \ fPo;jiy
mb 30 cs;s kidf;F vy;if fjpNurd; kid tPl;Lf;Fk;
fpof;f Rliy Kj;J kid tPl;Lf;fk; Nkw;F eluh[d; Mrhhp
kiztPl;Lf;Fk; njw;F 2-k; jgrpy; nghJ ghijf;fk; Rliy
Kj;J kiz tPl;Lf;fk; tlf;Fkhd kidAk; \ kidapy;
fl;blk; xd;Wkpy;iy.
2. \ fpuhkk; ej;jk; rh;Nt 142/7 ephpy; rJu mb 375
cs;s nghJ elghijf;fk; vy;if \ Ng&uhl;rp \ thh;by; \
njUtpy; \ a+hpy; ,jd; 1 yf;f kizf;Fk; tlf;F eluh[d;
Mrhhp kid tPl;Lf;Fk; fpof;F rhkp kid fpoNky; mb 5
njd;tly; mb 75 cs;s elghijapy; kl;Lk; 1 yf;f kidf;F
ele;J nfhs;Sk; gphptpd;wp 3-y; 1 gq;F elghij ghj;jpaKk;
$b tpguk; rhp jgrpy; nrhj;Jf;fspd; kjpg;G &ghapy; 19851.00.”
6. From a reading of the commissioner's report and plan and surveyor's
sketch, one can easily note that the plaintiff's house is located on the eastern
side, while the respondent's house is located on the western side. The disputed
pathway lies in between their houses. The only question that arises for
consideration is whether the disputed pathway is the exclusive property
belonging to the appellant or whether it is a common pathway. I have already
noted that both the parties trace their respective title to a common source.
While Mookka Mooppanar sold the property covered under Ex.A1 to the
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S.A.(MD)No.578 of 2010
plaintiff, his legal heirs sold the property covered under Ex.B1 to the
respondent herein. Kutralam-Tenkasi main road is lying on the northern side to
both the parties. Of-course, there are house plots between the properties of the
parties herein and the said main road. A common pathway has been earmarked
from Kutralam-Tenkasi main road so as to reach the lands of both the parties.
While in Ex.B1, it has been mentioned that the respondent herein can use the
said common pathway so as to reach his property, the said pathway is shown as
northern boundary for the plot sold in favour of the plaintiff. Therefore, one
can come to the safe conclusion that the entire suit second schedule property
belongs to the plaintiff. The courts below failed to correctly appreciate the four
boundary description given in Ex.A1. It is a material irregularity going to the
root of the matter. The courts below were swayed by the fact that Mookka
Mooppanar had sold only one cent of land in favour of the plaintiff. But she
appears to be enjoying an area more than one cent and it was for that reason,
they chose to exclude the plaint second schedule. The courts below failed to
take note of the basic principle that the boundaries will prevail over the extent.
The four boundary description in Ex.A1 is quite clear. Therefore, whatever
extent of land that falls within the four boundary obviously belongs to the
plaintiff even if it is a little more than one cent.
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S.A.(MD)No.578 of 2010
7. Therefore, both the substantial questions of law are answered in
favour of the plaintiff and the impugned judgment and decree of the courts
below are set aside. However, the second appeal cannot be allowed in toto in
view of the undertaking given by the appellant herself. Therefore, the suit and
the counter claim are disposed of in the following terms:-
(I) The staircase already put up by the plaintiff in the plaint
second schedule shall not be demolished.
(II) The remaining portion of the plaint second schedule shall be
enjoyed as a common pathway by both the parties.
(III) As and when the respondent herein wants to carry out any
repair works on the southern side of his property, the same shall not be
prevented by the appellant herein.
8. The second appeal is disposed of accordingly. No cost. Consequently,
connected miscellaneous petition is closed.
02.03.2022
Internet : Yes/No
Index : Yes/No
rmi
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.578 of 2010
G.R.SWAMINATHAN.J.,
rmi
To
1.The Principal Sub Judge, Tenkasi.
2.The Additional District Munsif Court, Tenkasi.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court, Madurai.
Judgment made in
S.A.(MD)No.578 of 2010
02.03.2022
https://www.mhc.tn.gov.in/judis
